Measure 37 has made a mess of Oregon’s land use laws. That’s undisputed. My state now has a crazily complex patchwork of land use time zones, each governed by a different set of rules based on when the owner acquired the property.
My wife and I are fully acquainted with the problems Measure 37 is creating. Scroll through this blog’s “Measure 37” category (past this post, which will temporarily head the list) and you’ll see that we know whereof we speak.
So here’s my speaking about how to fix Measure 37. The foundation of my fixing is some simple philosophy: land is sacred, but not in the way extreme property rights activists would have us believe.
Land is sacred—using this term in a broad non-religious sense—because humans can’t exist without it. Water is sacred to fish. Air is sacred to clouds. Space is sacred to stars. But sacredness obviously is not limited to land, water, air, and space.
For every entity in the universe, living or non-living, is part of an interconnected web that allows it to exist and do whatever it is capable of doing. A few days ago I went to a Measure 37 workshop at the Salem Public Library where Mitch Rohse, a land use planner, made this same point.
“Land is not a discrete object,” he said. It’s nature is connectedness. Water flows between legal parcels, both above and below the ground. Ditto with air, wildlife, and the photons that allow me to see what is on my neighbor’s lot, and for him to see what is on mine.
In addition, Rohse pointed out, land is not a product of man. It isn’t created. A religious person would say land is the result of God’s grace. A scientific person, that it is the result of natural processes. Whichever, land clearly isn’t an item that anyone can claim proud ownership of: “This is mine. I made it.”
As Rohse said, you can make a cell phone. You can make a jacket. But you can’t make land. So if there is anything on earth that a person doesn’t have a right to use as he or she wants, this would be land. (See my “Property rights and wrongs,” where I ask if it’d be okay to sell the entire planet).
However, most of us intuitively recognize that there is one use for which land is almost always well suited: the owner should be able to live on it (so long as the living can be done safely without seriously inconveniencing neighbors).
This is how Measure 37 was sold to voters by Oregonians in Action. We heard horror stories of how hard-hearted government bureaucrats were preventing people from building a house on long-held land that wasn’t much good for anything else, including farming. And voters bought it.
As they should have.
I believe that Oregon’s land use laws had indeed gotten overly rigid and needed some loosening up. But not a demolishing. The governor says that fewer than a thousand of the almost 6,500 Measure 37 claims filed to date are asking to build a home on land bought for that purpose years ago.
No, most are like the 217 acre claim adjacent to our neighborhood, where Leroy Laack and his iinvestment partners want to put 43 homes on 125 acres that are officially designated “groundwater limited.”
If Mr. Laack wanted to live on his property, we’d welcome him to the south Salem hills. However, since he wants to take the money and run by dividing his land into small parcels, we most certainly do have a problem with his proposal to turn productive farmland into a subdivision.
Let’s agree, then, that almost always people should be allowed to build a single home on their land. Again, this is what most voters thought they were getting with Measure 37. I’ve got no problem with that. Any Measure 37 fix should allow this to happen.
And that’s about all it should allow. For while I’d agree that there is a “sacred” right to live on one’s land, there is no such right to profit commercially from land. As Mitch Rohse said at the workshop I attended, bare land generally rises in value even when no improvements are made to it.
This is because the increased value comes from the community, not an individual. Rohse noted that we all created the increase in the value of land his family owns in eastern Oregon, for we all maintained a successful society. He called this the “great giving”—wealth given by the community to landowners.
In my quasi-grandiose “Could I become the anti-Measure 37 Dorothy English?” I argued that government actions affect the value of all kinds of investments: stocks, bonds, precious metals, commodities, and so forth. Why should commercial property investors expect special treatment through laws like Measure 37?
Governmental bodies are making decisions all the time that increase or decrease the value of assets held by people. If the Federal Reserve raises interest rates, the price of bonds goes down. Bond traders don’t moan and cry, “Government, reimburse me for the money that I’ve lost because of you.”
Similarly, I told Beth [a newspaper reporter] that both Laurel and I owned limited partnerships in the 1980s (we weren’t married to each other then, but had the same financial planner). They were touted as good investments because of the federal tax code in effect at the time.
Well, they weren’t nearly as good an investment after Congress tinkered with the tax code. As I recall, Oregon’s Mark Hatfield (or Bob Packwood?) was one of the prime movers behind the closing of this tax loophole. Overnight, the monetary benefit we were enjoying from the partnerships fell. A lot, I remember.
Investments rise. Investments fall. That’s the nature of investing. Why should property investments be the exception to this rule? The 217-acre Measure 37 claim next to our neighborhood is a proposed 82 lot subdivision, not a single-family home site.
There’s no reason why the owner of this investment property should be given a special dispensation to harm the limited groundwater supply in our area just because zoning laws changed after he bought the land. Tax laws changed after we bought our partnerships. Nobody compensated us for lost value caused by government action. Why should Leroy Laack and his partners get a free pass?
So this is the other way Measure 37 should be fixed: make a distinction between property held for personal use and investment property. Again, people usually should have the right to live on their land. However, they don’t have a right to roll back land use laws just so they can profit from their land.
Government doesn’t roll back laws for people who have lost money because of a change in a tax or fiscal policy. Neither should government waive Oregon’s land use laws just because the value of a property investment supposedly has been reduced a bit. That’s the way investing works: it’s risky business.
Thus the bottom line on fixing Measure 37 is simple: a landowner should almost always be able to build a house on his or her property. Aside from that, he or she has to abide by the current land use laws.
Get 'er done, governor and legislature. Making such a simple fix shouldn’t take long.